Human rights challenge over adoption fails

15 August 2011

The issue of the impact of the European Court of Human Rights is becoming increasingly relevant within Scots Law recently, with Scottish property law and criminal law cases being challenged in the higher courts both here and in Strasbourg. And in a recent family law case (S.v L [2011] CSIH 38) it was again a question mark over human rights compatibility that saw a sheriff at Dumbarton refer a question to the Inner House of the Court of Session in a child adoption case.
An individual wished to adopt a 4-year-old child and the natural mother opposed this. The key issue for the Court of Session to decide was in allowing the adoption to go ahead, whether a key part of the Adoption and Children (Scotland) Act 2007 was compatible with European Convention of Human Rights; specifically, article 8 right to respect for a family life.
In order for an adoption to go ahead, certain criteria must be met according to the law. The consent of the natural parent or guardian can only be dispensed with if they are unfit - and likely to continue to be unfit - to have responsibility for the child. The natural mother put forward several arguments: primarily, that her rights under the European Convention on the Adoption of Children 2008 meant that only in exceptional circumstances should her consent be disregarded, and breaking family ties should only be justified in exceptional cases.
In this case, the Inner House decided that the legislation was compatible. Central to the issue is the ‘welfare’ of the child; the court will look at the ‘whole life’ welfare of the child, to avoid a short term solution and put their needs at the heart of any decision taken, even if that decision is contrary to the status quo of a biological family unit.

The power of the Article 8 to influence courts on matters of family is also demonstrated in another case from December 2010, Principal Reporter v K (2011 SLT 271). This case concerned a father’s right to attend his daughter’s children’s hearing, a hearing being a less formal court process used in Scotland for juvenile offenders. The Court of Session overruled a sheriff’s decision that an unmarried father should have parental rights and responsibilities in order for him to be classed as a ‘relevant person’ and therefore be able to attend his daughter’s hearings. It was held by the Supreme Court on appeal that to deny him his parental rights was contrary to Article 8, regardless of whether the father lived with or had had regular contact with the child; and in fact as it stood, the children’s hearing system in Scotland violated this right. It suggested an amendment to the legislation to include anyone who appears ‘to have established a family life’ with a child. 

Bookmark and Share



blog comments powered by Disqus

Related Information


Internal Pages